CT Blue

One disadvantage to being a reality based type of blog, is that you are under a certain obligation to admit that you are wrong. So today, I must admit that I have been wrong on a regular basis about something.

I have, on a number of occasions, bemoaned the fact that Harry Reid has passively accepted the idea that it takes 60 votes to pass anything in the Senate, and that he has never forced the Republicans to actually filibuster. It turns out that theactual filibuster, the round the clock talking, the reading phone books, etc., may not exist:

Reid’s office has studied the history of the filibuster and analyzed what options are available. The resulting memo was provided to the Huffington Post and it concludes that a filibustering Senator “can be forced to sit on the [Senate] floor to keep us from voting on that legislation for a finite period of time according to existing rules but he/she can’t be forced to keep talking for an indefinite period of time.”
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As both Reid’s memo and Dove explain, only one Republican would need to monitor the Senate floor. If the majority party tried to move to a vote, he could simply say, “I suggest the absence of a quorum.”

The presiding officer would then be required to call the roll. When that finished, the Senator could again notice the absence of a quorum and start the process all over. At no point would the obstructing Republican be required to defend his position, read from the phone book or any of the other things people associate with the Hollywood version of a filibuster.

This, apparently, is a result of a rule change in 1917, which provided for cloture votes. Prior to 1917 a few determined Senators could forestall legislation indefinitely.

When the Republicans were in charge, they were poised to exercise the “nuclear option” and declare the filibuster, as it related to judicial appointments, unconstitutional. They felt they could do it by a parliamentary ruling. The Democrats responded to the threat: they preserved the filibuster by basically promising not to use it, which essentially preserved it for the Republicans.

The “nuclear option” at that time, applied only to judicial nominations. The theory, it seems to me, could easily be extended to all legislation. Indeed, in light of the fact that the Senate rules essentially give veto power to a minority, one must wonder whether there are some constitutional questions raised here. Could a majority of 51 pass a rule requiring 100 votes to invoke cloture, effectively requiring unanimous consent for all legislation? Is the majority principle sufficiently enshrined in the constitution to warrant some protection? My guess is that it’s not. There is nothing in the Constitution that states that a majority vote is sufficient to pass legislation, and there is something that allows each House to “determine the Rules of its Proceedings”.

But, as the Republicans showed, there is more than one way to skin a cat. If the Democrats opted to “go nuclear” with regard to the legislative filibuster, there might not be much the Republicans could do about it, just as the Democrats might have been helpless when they were in the minority. The courts, assuming they were intellectually honest, could not get involved in the internal operations of the Senate.

In any event, it looks like making the Republicans stand up and talk is not a viable option. That doesn’t let Reid completely off the hook. Where there’s a will, there’s a way, and there has to be a way to make the cost of obstruction heavy enough that the filibuster once again becomes a rarely used tool. Denying the offender earmarks might be a good place to start.

Update: Another take, from Ari Melber, at the Nation:

When I worked as a legislative aide in the U.S. Senate in 2002 and 2003, both parties used “holds” and filibuster threats all the time. By mutual agreement, however, these filibuster threats operate out of the public’s view. So senators — even a single one — can threaten to stall the entire chamber’s proceedings, while avoiding the cost of any public criticism for their maneuver.

Forcing senators to actually filibuster on the floor would increase public information and scrutiny of this practice. It would almost certainly reduce some of the recent abuse. It really doesn’t matter much whether senators talk the whole time, or ask for quorums, or play sudoku. Yes, movie filibustersmay be full of dramatic sermons. But if the Republicans were forced into even a silent filibuster, spending weeks thwarting up-or-down votes on the country’s economic agenda, the public would surely notice. Especially if Sen. Reid criticized them for it — instead of writing memos defending the status quo.